South East Asia: the state of free expression

Article 19, South East Asia: the state of free expression, 14 July 2011, available at: http://www.refworld.org/docid/4e38f2d72.html [accessed 31 March 2015]

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On 15 – 16 July 2011, a Regional Symposium on the Criminalization of Free Speech, Expression and Opinion in Asia will be held in Jakarta in conjunction with the unofficial visit by the United Nations Special Rapporteur on Freedom of Opinion and Expression ("Special Rapporteur") Frank La Rue to Southeast Asia - namely Thailand, Cambodia, Malaysia and Indonesia. On the occasion of the event and the Special Rapporteur's visit, this statement outlines the key challenges to the right of all individuals in the region to seek, receive and impart information and ideas of all kinds.

Internet censorship is one of the most worrying trends in the region

In particular, ARTICLE 19 is concerned about the trends of internet censorship, the marginalisation and discrimination of religious minority groups, the use of defamation charges to suppress criticisms of the government, the crackdown on legitimate expressions by protestors, and the lack of access to information by the public as outlined below.

I. Freedom of expression on the internet:

Internet censorship is one of the most worrying trends in the region. Some governments are taking actions and putting in place measures to unduly restrict freedom of expression on the internet. These include the use of legislations to restrict and criminalise online speech, filtering and blocking of websites, and arrest and prosecution of content providers as well as intermediaries for the internet.

In Thailand, the media, especially on-line, has become a battleground for the different parties to the political conflict. The government used the 2007 Computer Crime Act (CCA) aggressively to limit online speech especially speech by the supporters of the opposition.[1] The CCA severely undermines the right to freely provide and receive information on the internet, by using vague and overbroad provisions subjected to interpretation, imposing liability on ISPs, carrying out surveillance of users not suspected of a crime and blocking websites. In addition, other legislation including the Emergency Decree and Penal Code, and informal pressure are used to limit access to content on the internet without adequate legal authority. Lèse-majesté charges under the Penal Code and CCA are often used as pretence by the government to silence its critics. Tens of thousands of websites are being blocked, many without any judicial authority. The sharp rise of CCA legal cases from 28 cases in 2008 to 76 cases in 2010, and the arrest of bloggers and intermediaries have a chilling effect on freedom of expression in Thailand. For example, website administrator Thanthawut Taweewarodomkul was sentenced by a Thai court to 13 years in prison for posting content offending the royal family. In another case under trial, Chiranuch Premchaiporn, the editor of Prachatai news website, has been charged under these provisions for anti-monarchy comments made on the site by anonymous visitors.

The intention of the government of Indonesia to restrict online speech is evident from the adoption of the Electronic Transactions and Information (ITE) Law in 2008, the tabling of a draft Multimedia Content regulation to regulate the internet, the proposal to set up a internet content screening team and attempts to oblige service providers to filter content on the internet and BlackBerry smartphones. In particular the high-profile case of Prita Mulyasari who has been convicted by the Supreme Court (despite being cleared previously of all charges by a district court) for sending e-mails critical of the medical service she had received at a hospital clearly indicates the problematic nature of the ITE law and has led to greater self-censorship by internet users. The striking down of the article of the ITE law dealing with wiretaps by the Constitutional Court in February 2011 is a positive sign. But although wiretaps warrant can no longer be sought under that article of the ITE law, internet users still face the risk of up to six years of imprisonment if found guilty of defamation on the electronic medium.

In Malaysia, the decision by the Malaysian Communications and Multimedia Commission to block 10 popular file-sharing websites in an effort to combat piracy drew strong criticisms from consumers and internet users. Although there is no specific legislation on internet regulation, section 233(3)(1)(a) of the Communications and Multimedia Act which makes it an offence to knowingly create and transmit any content that is "obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person", has been used to target online users. For example, blogger "Hassan Skodeng", whose real name is Irwan Abdul Rahman, was charged under this act over a satirical post. The case was eventually withdrawn.

In Cambodia, although there is currently no specific legal framework to limit online expression, a number of websites have been blocked in recent years indicating an increased interest to restrict freedom of expression on the internet. For instance, access to the website of UK-based corruption watchdog Global Witness was blocked for internet users of the ISP AngkorNet, following the publishing of the critical report "Country for Sale" on Cambodia's oil and mining industry. The government has also threatened to shut down online news website KI-Media. In early 2010, the Cambodian government initiated plans to create a state-run centralised internet hub, through which all of Cambodia's internet traffic will be routed, as a measure to regulate the internet. Following protests from telecom and ISP companies, the government shelved the proposal, but it is reported that new internet licensing requirements might be developed in the future.

ARTICLE 19 emphasises that international human rights rules on freedom of expression apply to internet communications. Whilst we recognise that the exercise of freedom of expression may be subject to limited restrictions which are prescribed by law and are necessary, for example for the prevention of crime and the protection of the fundamental rights of others, including children, we stress that any such restrictions must be balanced and comply with the three-part test under international law on freedom of expression.

II. Freedom of expression of religious minorities

ARTICLE 19 is deeply concerned about the discrimination and marginalisation of religious minorities in Indonesia and the violations of their freedom of expression, freedom of religion and the right to equality. Religious tolerance has come under mounting strain in the country in recent years. Religious minority groups such as the Christians and Ahmadis are facing constant intimidations, discrimination and violence often by groups espousing intolerance and inciting hatred and violence in the name of upholding Islamic orthodoxy. The 6 February 2011 incident in Cikeusik, Banten province, saw 21 followers of Ahmadiyah prevented from expressing their faith, and violently attacked by a mob of 1500 Islamic extremists resulting in the deaths of three Ahmadis and at least five other seriously injured. Twelve of the attackers were arrested and are currently on trial. Churches and Christian clergy and congregations have also been targeted. In the case of the Gereja Kristen Indonesia Yasmin Church in Bogor, the local government insisted that the church relocates despite the Supreme Court's verdict that overturned the Bogor administration's request to shut down the church. Members of the church also face verbal abuses by a group of residents and threats to burn down their temporary place of worship.

Although the Indonesia Constitution protects religious freedom, the 1965 defamation of religions law imposes criminal penalties of up to five years' imprisonment on individuals or groups that "deviate" from the basic teachings of the official religions. In addition, the 2008 Joint Ministerial Decree forbids Ahmadiyah followers from "conveying, endorsing or attempting to gain public support" for their religious beliefs.[2] These legislations have been used by extreme groups as justifications for their attacks on religious minorities. The public expression of support for the outlawing of Ahmadiyah by the Minister of Religious Affairs and other state actors and the impunity enjoyed by the perpetuators of these violent acts, further aggravate the situation.

III. Defamation

Powerful elites, companies and politicians frequently use both civil and criminal defamation to intimidate, bankrupt and imprison their critics in the region. ARTICLE 19 emphasises that under international standards, even if a statement of fact on a matter of public concern has been proven to be false, defendants in a defamation lawsuit should benefit from a defence of 'reasonable publication', also known defence of 'due diligence' or 'good faith'. Furthermore, should the Court find the statements defamatory, the amount of damages must be assessed in view of proportionality.

There have been numerous concrete examples of these laws to penalise critical voices:

a. Civil Defamation

In Malaysia, Human Rights Defender Charles Hector is facing trial in August at the High Court of Malaya in Shah Alam for allegedly defaming the Malaysian subsidiary of Asahi Kosei Japan Co. Ltd, a Japanese electronics company.[3] The defamation case centres around articles Hector posted on his blog in which he raises his concerns about the companies' treatment of 31 Burmese migrant workers. The company, which has already obtained an injunction against Hector's blog posts, is demanding damages of RM10 million (app. US$ 3.2 million). It is ARTICLE 19's opinion that the burden of proof regarding the falsity of the blog statements should lie with the plaintiff.

The son of Indonesia's former President Suharto - Hutomo Mandala Putra or Tommy Suharto as he is more commonly known, was awarded on 24 May 2011 damages for defamation worth 12.5 billion Rupiah ($1.46 million) for a magazine article which described him as a "convicted murderer".[4]The article was referring to his 2002 conviction for ordering the murder of a Supreme Court judge. In addition to the monetary compensation, the court ordered the magazine to publish an apology in the next three monthly editions.

In Thailand, big corporations - including Picnic Corporation and Tesco Lotus (local branch of the U.K.-based company Tesco) - have sought exorbitant damage claims (as high as hundreds of millions of US dollars) for comments made in the media. We note that under the Thai Civil and Commercial Code, there is no set limit on the compensation for defamation, leaving it entirely to the discretion of the court.

b. Criminal Defamation

The lèse majesté law is one of the most powerful political tools used to silence dissent.[5] Following political unrest in Thailand, there has been a sharp increase in lèse majesté charges in Thailand. Under Article 112 of the Criminal Code, anyone found guilty "to defame, insult or threaten the King and his family" could face up to 15 years of prison. In addition, the lèse majesté law is often used in conjunction with the 2007 Computer Crime Act (CCA) to restrict expression on the internet. By providing special protection for the royalty, the lèse majesté law is in breach of international guarantees of freedom of expression, which require public figures to tolerate more, rather than less, criticism. The more recent cases of lèse majesté include the case of military officer Squadron Leader Chanin Klaiklung who was charged for the messages on his Facebook referring to the dictatorial father on a TV soap opera and a song, and the arrest of Thai-American Joe Gordon for allegedly posting a link on his blog in 2007 to the book The King Never Smiles, which is banned in Thailand.

In Cambodia, the new Penal Code that came into force in December 2010 maintains the criminal offence of defamation despite promises from Prime Minister Hun Sen in February 2006 that the crime would be removed from the statute books. Moreover, the Penal Code further extends the scope of defamation to criminalise comments that are held to undermine the honour or reputation of institutions. Article 502 provides for the imprisonment of individuals whose words, gestures, writing, sketches or objects are held to undermine the dignity of a civil servant or "citizen entrusted with public mandate by an election in office", while Article 523 criminalises any criticism of court decisions which are said to "cause turmoil" or "endanger Cambodian institutions". These provisions clearly prove that one of the primary objectives of the Cambodian Penal Code is to ensure that those in power are shielded from criticism while those who are not in power must think very carefully before voicing an opinion that runs counter to that of the government or the ruling part.

IV. Freedom of association, assembly and expression

In Malaysia, the mass arrest of democracy activists in the run-up to and during the Bersih 2.0 rally demanding electoral reform indicates the lack of respect by the government for freedom of expression and freedom of association and assembly.[6] Police fired water cannons and tear-gas at the peaceful protestors who were calling for clean and fair elections and arrested more than 1600 protestors. By responding in such a heavy-handed manner to a rightful call for fair elections, the Malaysian Government is preventing legitimate political expression and seriously setting back democracy in Malaysia.

In Cambodia, police beat and arrested 11 villagers, including women and two children, who were protesting their imminent evictions in a land-grab deal in Phnom Penh in April 2011. The residents were in a group of 100 villagers who gathered at the municipality's head office, seeking discussions over their pending evictions. As the land grab situation intensifies, many residents in Cambodia are threatened of being evicted with little or no compensation. The use of force against protests contradicts the government's obligation to the right to freedom of expression, association and assembly, and will not resolve the mounting tensions over land entitlements.

Furthermore, two forthcoming laws in Cambodia, the Law on Associations and Non-Governmental Organisations (the "NGO Law) and the Law on Trade Unions ("Union Law"), threaten to undermine the right to freedom of association in the country and, with it, the right to freedom of expression.[7] The draft NGO Law contains a number of vague and problematic provisions, including a requirement of compulsory registration for all NGOs before they are allowed to "operate any activity" and imposes burdensome, overly bureaucratic registration requirements. It is feared that the vague provisions of the NGO Law may provide for arbitrary and selective denial of registration applications, resulting in the criminalisation and/or closure of NGOs and other associations, with the law silent on any appeal process if a registration application is rejected. Similarly, the Union Law imposes onerous registration processes and reporting obligations on groups of employees. The registration requirements in both laws will mean that if groups fail to register, then their activities and the very fact of forming an association will be deemed illegal. Moreover, the process of drafting of these laws was problematic and did not allow for proper input and consultations of the civil society.

V. Right to information

There has been significant progress in the protection of the right to information in the region. Indonesia and Thailand have national right to information legislations. In Malaysia, progress is being made at the state-level, with the adoption of the country's first RTI legislation in the federal state of Selangor and the tabling of a similar bill in another federal state Penang. In Cambodia, the opposition party has initiated the discussion of a right to information bill in the parliament.

On the other hand, a number of challenges continue to undermine the right of the public to access information. In Thailand, the legal and practical enforcement of this right remains weak after 13 years since the 1997 Official Information Act (OIA) was passed. Furthermore, the Official Information Commission (OIC) is not independent as it is part of the Prime Minister's Office, which has the power to undermine information disclosure. Over 4,000 government agencies throughout the country have still not set up a right to information unit. Nevertheless, there has been a positive development in access to environmental information. A landmark decision made by the OIC on 7 June 2010 specified that information relating to environment and heath must be made available for people to monitor, as stipulated in Article 9 (8) of OIA.

In Indonesia, since the Freedom of Information Act came into effect on 1 May 2010, public bodies are obligated to provide information to the public in line with the provisions of the Act. Despite having had more than two years to prepare for the implementation of the Act, public bodies are still struggling to put in place mechanisms to ensure access to information and government transparency. Additionally, there is also continuing delay in the establishment of the Provincial Information Commission as stipulated by the Law. Only 12 out of the 33 provinces across Indonesia have established information commissions.

VI. Recommendations

In response to these concerns, ARTICLE 19 calls on the United Nations Special Rapporteur on Freedom of Opinion and Expression to make the following recommendations to the governments in the region:

The national governments should respect the right to freedom of expression in internet communications, and develop balanced and tailored approaches that are adapted to the unique characteristics of the internet.

We urge the new government of Thailand to amend and limit the Computer Crime Act to crimes that affect systems or networks including illegal access to computer systems or using computer systems to create harm to the computer network such as releasing viruses or denial of service attacks, and to preventing fraud.

We call on the Indonesian government to repeal the 1965 defamation of religions law and the 2008 Joint Ministerial Decree prohibiting Ahmadiyah.

We also urge the Indonesian government to ensure that acts of violence against religious minorities and attacks on their homes, religious symbols and places of worship are thoroughly investigated and those responsible held to account.

Defamation should be fully decriminalised. Limits should be imposed on the use of defamation charges by public bodies and officials, and the amount of damage claims must take into account proportionality.

The government of Malaysia should not take legal actions against the activists and protestors of Bersih 2.0, and should unconditionally release the six leaders of the Socialist Party of Malaysia (PSM) who have been detained under the Emergency Ordinance for supporting the rally.

The Cambodian government should ensure that the police respect the right to peaceful protests and repeal the draft "NGO Law" and "Union Law".

The federal state of Penang in Malaysia and the government of Cambodia should draft and adopt right to information legislations based on international standards and best practices.

The Thai government and civil society should actively promote the use of the Official Information Act. The Act should be amended to include all public bodies including the Royal Institution, set clear time lines for the disclosure of information, and narrow down the exceptions. The Official Information Commission should be made independent of the government.

Public bodies in Indonesia should put in place mechanisms to provide access to information to the public. The Indonesian government should allocate sufficient resources and support the establishment of Provincial Information Commissions.

[1] See section on Computer Crime Act in ARTICLE 19's submission for the Universal Periodic Review of Thailand: www.article19.org/pdfs/submissions/thailand-upr-submission.pdf

[2] See amicus curiae brief filed by ARTICLE 19Amnesty International, the Cairo Institute for Human Rights Studies and the Egyptian Initiative for Personal Rights with the Court in support of repealing the laws: http://www.article19.org/data/files/pdfs/analysis/judicial-review-of-law-number-1-pnps-1965-concerning-the-prevention-of-relig.pdf.

[3] For more information on the case of Charles Hector case, see: http://www.article19.org/resources.php/resource/1826/en/malaysia:-charles-hector-defamation-case-cause-for-concern

[4] For more information on the defamation case of Tommy Suharto, see: http://www.article19.org/resources.php/resource/1773/en/indonesia:-million-dollar-defamation-award-to-suharto's-son-setbacks-freedom-of-expression

[5] See section on lèse majesté in ARTICLE 19's submission for the Universal Periodic Review of Thailand: www.article19.org/pdfs/submissions/thailand-upr-submission.pdf